Arizona Judge blocks most controversial portions of Arizona immigration law

A partial injunction order came down from Arizona District Court Judge Susan Bolton on Senate Bill 1070 today. Judge Bolton’s order will block the worst parts of Arizona Senate Bill 1070, which was set to go into effect tomorrow, as a result of the Department of Justice’s lawsuit against the state of Arizona. A total of seven lawsuits have been brought against the state.

Judge Bolton decided to block the following portions of the law: requiring local police officers to arrest a person if the officers had “reasonable suspicion” that the person was an undocumented immigrant; making it a crime to be undocumented; and authorizing arrests (without warrants) if officers have “probable cause” to believe that a person has committed a crime that could get her or him deported. The judge decided to allow other harmful portions, such as a prohibition on hiring workers who are known to be “unauthorized aliens,” to go into effect as scheduled.

Although groups that opposed SB 1070 (like the Latina Institute) cited the rampant racial profiling that would surely result as a principal reason to strike down the entire law, neither the Justice Department nor Judge Bolton took this argument into account. The main reason for this is that the Justice Department’s client here is the United States government, not any particular individual, and that government was not at risk of being racially profiled as a result of this law. Another reason is that there are not yet any victims of racial profiling in Arizona (as a result of SB 1070) because the law has not gone into effect; so even if the Justice Department wanted to use that argument it would probably fail. Finally, as legal scholars have pointed out (in a recent op-ed and in a longer law review article), racial profiling in immigration enforcement has been upheld by the Supreme Court in at least two cases.

Instead, one constitutional argument and two technical legal arguments won the day. First, the Justice Department argued that from a constitutional perspective, SB 1070 was preempted by the federal government – meaning that immigration law is the realm of the federal government and states are not empowered by the Constitution to make their own laws on this subject. Second, the Justice Department argued that the state of Arizona would be likely to lose its arguments if the lawsuit moved forward, so blocking the law now would save the judicial system time and money. Third, the Justice Department argued that if the law was allowed to go into effect, “irreparable harm” would result to the federal government from the its enforcement because it would signal to other states that they can begin creating a “patchwork of immigration laws” across the country.

Judge Bolton was convinced, at least on some portions of the law, to leave immigration enforcement up to the federal government. As the New York Timesreports,

“Preserving the status quo [of leaving immigration in the hands of the federal government] through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” Judge Bolton said.

Arizona Governor Jan Brewer (R) stated that she will appeal the ruling all the way to the Supreme Court “for the right to protect the citizens of Arizona” from what anti-immigrant advocates see as a violent upsurge in illegal crossings of the southern border. (See this recent piece on how illegal crossings have actually diminished as the hysteria against immigrants has increased.) However, any appeals court (including the Supreme Court) may only consider issues that were raised at the first stage of the case – in this case, the three issues outlined above (federal preemption of state immigration laws, the likelihood that either side would prevail, and the irreparable harm that would result if the law were allowed to go into effect as is). Any other questions would not come before the Supreme Court as a result of this case.

Meanwhile, President Obama has sent 1,200 troops to the U.S.-Mexico border in an effort to bolster his criticism of SB 1070 with assurances that the federal government is actually doing something to address what is seen as increased violence along the border. Those troops are scheduled to arrive as early as Sunday. Immigrants rights advocates generally see this approach as harmful and unnecessary, given that the U.S. is seeing its lowest levels of illegal border crossings in years.